of the provision of the First Amendment
that “Congress shall make no law …
abridging the
freedom of speech,
or of the press.
…” (Emphasis
added.) That
argument falls in
light of our holding
that obscenity is not expression protected
by the First Amendment. We therefore
hold that the federal obscenity statute
punishing the use of the mails for obscene
material is a proper exercise of the postal
power delegated to Congress by Art. I, § 8,
cl. 7.7 [Footnote omitted.]
In 1973, the Supreme Court stated in Miller
v. California:
This Court has recognized that the States
have a legitimate interest in prohibiting
dissemination
“This much has been
or exhibition of
categorically settled by
obscene matethe Court, that obscene
rial when the
material is unprotected
mode of disby the First Amendment.”
semination
Miller v. California
carries with it
a significant danger of offending the
sensibilities of unwilling recipients or of
exposure to juveniles.8 [Footnote omitted.]
This much has been categorically settled
by the Court, that obscene material is
unprotected by the First Amendment.9
The dissenting Justices sound the alarm of
repression. But, in our view, to equate the
free and robust exchange of ideas and
political debate with commercial
exploitation of obscene material demeans
the grand conception of the First
Amendment and its high purposes in the
historic struggle for freedom. It is a
“misuse of the great guarantees of free
speech and free press. …”10
The First Amendment protects works
which, taken as a whole, have serious
literary, artistic, political, or scientific value,
regardless of whether the government or a
majority of the people approve of the ideas
these works represent. … But the public
portrayal of hard-core sexual conduct for
its own sake, and for the ensuing
commercial gain, is a different matter.12
How to Fight Back Against
Obscenity
Know the law. Morality in Media’s
National Obscenity Law Center has links
to federal and state obscenity laws. Visit
www.moralityinmedia.org.
File a
complaint
about
broadcast
indecency
with the
Federal
Communications Commission at
www.fcc.gov/eb/oip.
File a complaint for violations of Internet
obscenity laws at
www.obscenitycrimes.org. The website is
run by Morality in Media, and each
complaint it receives is reviewed and
forwarded to the Department of Justice
and to the complainant’s U.S. Attorney.
Obscenity
IS NOT
Protected
Speech
PARENTAL DISCRETION ADVISED
Footnotes:
1 Miller
v. California (1973) 413 U.S. 24.
2 Id. at 25.
3 Chaplinsky v. New Hampshire (1942) 315
U.S. 571-572.
4 Roth v. United States (1957) 354 U.S. 481.
5 Id. at 483.
6 Id. at 484-485.
7 Id. at 492-493.
8 Miller v. California (1973) 413 U.S. 18-19.
9 Id. at 23.
10 Id. at 34.
11 Id. at 34.
12 Id. at 35.
Resource compiled by the Beverly LaHaye Institute,
the think tank for Concerned Women for America.
www. Beverlylahayeinstitute.org
Concerned Women for Published
America1/2011
1015 Fifteenth Street N.W., Suite 1100
Washington, D.C. 20005
ConcernedWomen.org
1 (800) 458-8797
Published May 2011
Obscenity as
defined by
the court
Find out the criteria established by the
U.S. Supreme Court to determine what
is obscenity.
Obscenity
verses free
speech
View excerpts from several cases of
how the court made it clear that obscenity
is never to be considered free speech.
Fighting back
against
obscenity
Find out how you can make a difference
in combating obscenity.
Concerned Women for America Resource
The First Amendment states, “Congress
shall make no law respecting an
establishment of religion, or prohibiting the
free exercise
thereof; or
abridging the
freedom of
speech, or of
the press; or
the right of
the people peaceably to assemble, and to
petition the government for a redress of
grievances.”
Obscenity is a legal definition, and much of
what we know as “pornography” meets the
legal definition. If pornographic material
meets the three criteria listed below, it is
obscenity. If it is obscene, it is illegal. Many
people, especially pornography producers,
distributors, and viewers, continually claim
that the First Amendment protects obscenity as a freedom of speech issue. The
United States Supreme Court says those
people are wrong.
What is Obscenity?
The Supreme Court established a standard
as the basis for determining what material
is obscene. The Court set that standard in
a 1973 case called Miller v. California. It is
therefore known as the “Miller test” or the
“three-prong test.”If material meets all
three criteria1 in Miller v. California, then it
is obscene:
(a) whether “the average person, applying
contemporary community standards”
would find that the work, taken as a
whole, appeals to the prurient interest
(b) whether the work depicts or describes,
in a patently offensive way, sexual
conduct specifically defined by the
applicable state law; and
(c) whether the work, taken as a whole,
lacks serious literary, artistic, political,
or scientific value
The Court continued by giving some
examples2 of what state statutes could use
to define paragraph (b) above for
regulation:
(a) Patently offensive representations or
descriptions of ultimate sexual acts,
normal or perverted, actual or simulated
(b) Patently offensive representations or
descriptions of masturbation, excretory
functions, and lewd exhibition of the
genitals
United States Supreme Court
Rulings
In 1942, the Supreme Court stated in
Chaplinsky v. New Hampshire:
There are certain well-defined and narrowly
limited classes of speech, the prevention
and punishment of which have never been
thought to raise any Constitutional
problem. These include the lewd and
obscene. ... It has been well observed that
such utterances are no essential part of
any exposition of ideas, and are of such
slight social value as a step to truth that
any benefit that may be derived from them
is clearly outweighed by the social interest
in order and morality.3 [Footnotes omitted.]
In 1957, the Supreme Court stated in Roth
v. United States:
The dispositive question is whether
obscenity is utterance within the area of
protected speech and press. Although this
is the first time
“... either under the First the question
Amendment or under the
has been
Fourteenth Amendment …
squarely
this Court has always
assumed that obscenity is presented to
this Court
not protected by the
either under
freedoms of speech
the First
and press.”
Amendment or
Roth v. United States
under the
Fourteenth Amendment, expressions found
in numerous opinions indicate that this
Court has always assumed that obscenity
is not protected by the freedoms of speech
and press.4 [Footnote omitted.]
At the time of the adoption of the First
Amendment, obscenity law was not as fully
developed as libel law, but there is
sufficiently contemporaneous evidence to
show that obscenity, too, was outside the
protection intended for speech and press.5
[Footnote omitted.]
All ideas having even the slightest
redeeming social importance — unorthodox
ideas, controversial ideas, even ideas
hateful to the prevailing climate of opinion
— have the full protection of the
guaranties, unless excludable because
they encroach upon the limited area of
more important interests. But implicit in
the history of the First Amendment is the
rejection of obscenity as utterly without
redeeming social importance. This
rejection for that reason is mirrored in the
universal judgment that obscenity should
be restrained, reflected in the international
agreement of over 50 nations, in the
obscenity laws of all of the 48 States, and
in the 20 obscenity laws enacted by the
Congress from 1842 to 1956.6 [Footnotes
omitted.]
Roth’s argument that the federal obscenity
statute unconstitutionally encroaches upon
the powers reserved by the Ninth and
Tenth Amendments to the States and to
the people to
punish
speech and
press where
offensive to
decency and
morality is
hinged upon his contention that obscenity
is expression not excepted from the sweep